Ryan v NSW Trustee& Guardian [2011] NSWSC 319 (18 April 2011)

Last Updated: 2 May 2011

Supreme Court New South Wales

Case Title:	Ryan v NSW Trustee & Guardian
Medium Neutral Citation:	[2011] NSWSC 319
Hearing Date(s):	Friday 1 April 2011
Decision Date:	18 April 2011
Jurisdiction:
Before:	Associate Justice Macready
Decision:	See paragraph 49.
Catchwords:	WILLS AND ESTATES - family provision claim by three of the deceased's 10 children for further provision out of the deceased's very small estate. Order for further provision made.
Legislation Cited:	Family Provision Act 1982
Cases Cited:	Savic v Kim [2010] NSWSC 1401 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Texts Cited:
Category:	Principal judgment
Parties:	Travis Alexander Ryan & Ors v NSW Trustee & Guardian
Representation
- Counsel:	Counsel: Mr B Townsend for plaintiff Ms V Hartstein and Mr S Feredoes for deft.
- Solicitors:	Solicitors: Tieli Blazland Lawyers for plaintiff NSW Trustee & Guardian
File number(s):	2009/00287381
Publication Restriction:

Judgment

1. This is an application under the Family Provision Act 1982 in respect of the estate of the late Edwin Lawrence Ryan who died intestate on 12 August 2007 aged 61 years. The deceased was survived by a former wife, three defacto partners and at least 10 children.
   
2. The three plaintiffs are the deceased's three youngest children, Travis aged 13, Caitlin aged 11 and Russell aged 10 years. The plaintiffs' mother Kim Maria Skinner, who is their tutor in the proceedings and the most recent of the deceased's defacto partners, brings the claim.
   

Entitlement

3. Since the deceased died intestate and having regard to the various people who have survived the deceased, the estate will pass equally to his children. There are at least 10 children as there is the suggestion by the plaintiffs' tutor, Kim Skinner, that there was another child named Anthony Dootson. The tutor gave Anthony's address to the defendant who obtained a grant of letters of administration in the estate. After giving notice to Anthony, there was no response and there is no information available from the defendant to prove that in fact he was a child of the deceased.
   
4. The deceased's former wife is Rita Santos. Various searches have been made under her name and other names she may have used and I am satisfied that it is not practicable to give notice to her.
   

The estate

5. The deceased's property has been sold and the amount held by the trustee is $176,240.57. Further legal costs are anticipated and there is tax payable, which will reduce this figure to $149,138.07.
   
6. There is also a claim by a firm of solicitors, McNamara James and O'Connor, who acted initially for some of the members of the family. The solicitor's claim has been reduced to $11,940.40 as the work did not result in a grant of administration. However, the work was useful in establishing the family history. The trustee proposes to pay this amount in satisfaction of the claim.
   
7. The plaintiffs' costs on a party and party basis are estimated at $29,887 and if these costs are allowed the amount available for the beneficiaries will be reduced to $107,310.67.
   

History

8. The deceased was born on 23 March 1946. There are no details of his marriage to his wife, Rosita Santos.
   
9. The deceased and Joanne Lomas commenced a de facto relationship in 1963 and they had two children Michael Colin Ryan born in April 1964 and Lisa Suzanne Ryan born in October 1965.
   
10. In 1970 at his father's insistence, Michael turned down a offer of an apprenticeship and commenced work with his father on banana plantations. A second son, Mark Lawrence Ryan, was born in August 1973. By the late 1970s Joanne Lomas and the deceased ceased their relationship.
    
11. Some time later the deceased formed a relationship with Sharon Noble. Angela Michelle Rushbrook was born in December 1980 and another child, Carolyn Jennifer Noble was born in February 1984. Her mother, Sharon Noble died in 1984.
    
12. In January 1986, the deceased and commenced a de facto relationship with Gaye Anderson. They had two children Mitchell Lawrence Anderson born January 1987 and Stacey Louise Anderson born June 1988.
    
13. In 1996, Kim Skinner, the tutor in these proceedings and the deceased commenced a de facto relationship. They had three children, Travis Alexander Ryan born March 1998, Caitlin May Ryan born May 1999 and Russell Lee Ryan born March 2001.
    
14. In 2002, Kim Skinner and the deceased separated and the children remained with their mother. The deceased paid child support for his children. In late 2002, Kim Skinner and the deceased resumed living together. There was another separation in 2003, which was final.
    
15. In 2004, the deceased obtained custody of the three children who returned to live with the deceased while Kim Skinner paid some child support.
    
16. The deceased died on 12 August 2007 and after his death, the children retuned to live with their mother.
    
17. These proceedings were commenced on 30 January 2009, which at that stage, included Kim Skinner as a plaintiff.
    
18. On 30 November 2009, Letters of Administration for the estate of the deceased was granted to the NSW Trustee and Guardian and on 15 December 2009, it was substituted as the defendant.
    
19. The amended summons was filed on 11 October 2010 removing the tutor as the fourth plaintiff so that she could act as tutor.
    

Eligibility

20. The plaintiff's three children of the deceased are eligible persons.
    
21. In applications under the Act, the High Court has referred to the two stage approach in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 (see also Savic v Kim [2010] NSWSC 1401).
    
22. In Singer v Berghouse Mason CJ, Deane and McHugh JJ stated at 208-210:
    

"The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the "jurisdictional question".....

....

The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc were explained in Bosch v Perpetual Trustee Co Ltd [1938] AC, at p 476. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder [1951] HCA 44; (1951) 82 CLR 645, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

23. I will now consider the situation in life of the plaintiffs.
    

The plaintiffs

24. Travis, is 13 years of age. Caitlin is 11 year of age and Russell is 10 years of age. They live with their mother, Kim Maria Skinner.
    
25. The plaintiffs' only assets are some credit union accounts with small balances which were left by the deceased who was a trustee for them. The amount held for Travis is $1,530.91, for Caitlin, $1,230.25 and for Russell, $1,330.28.
    
26. The children are of course completely dependent on Kim Skinner and I turn to consider her situation.
    
27. Kim Skinner is 41 years of age, single and not in a relationship with anyone. She lives in a housing commission house at Woolgoolga in northern New South Wales. Her only asset is a 1993 model Honda Accord that she purchased in February of this year for a thousand dollars. She is currently learning to drive and she wants a car to be able to transport the children. Until recently she has been on a pension of $1,300 per fortnight but will shortly start work two days a week with the Yarrawarra Aboriginal Cultural Centre as a receptionist.
    
28. Apart from looking after Travis, Caitlin and Russel, Kim looks after her 15 year old son, Craig, who is not a child of the deceased.
    
29. Her income is entirely consumed with expenses in bringing up the four children. She cannot afford to go away on holidays other than visit her sister who lives nearby.
    
30. The three children were all diagnosed with ADHD in January 2010. Medication has been provided for them and this has significantly benefited their learning and their behaviour. This is evident by the improvement in their school reports, which are in evidence. The doctor who diagnosed them has said that further assessments by occupational therapists and speech pathologists are required to see if there are specific learning disabilities. He also has indicated that they will need active ongoing clinical management throughout their adolescence to achieve their potential.
    
31. Although they receive some special tutoring at school, the school has advised that there is a real need for additional tutoring. The plaintiff wanted to enrol the children in at least two hours per week of out of school tutoring, which costs $40 per hour. Unfortunately she could not afford this.
    
32. The nature of their illness means that intervention at this age can be of substantial benefit to the children and it can mean that they will be able to take a proper role in society once they have grown up.
    
33. It is necessary to consider the situation in life of others having a claim on the bounty of the deceased.
    
34. In this case, two of the children, Mark Ryan and Angela Rushbrook have not provided any evidence of either their financial affairs or their relationship with the deceased. In these circumstances the Court can assume that they do not want these matters to be taken into account in considering the application.
    
35. I turn to consider the situation of the others who have put on evidence.
    

Michael Colin Ryan

36. Michael is 46 years of age and as I have mentioned he gave up an opportunity for an apprenticeship to come back and work for his father on his banana farm. The work affected his health such that he can no longer carry loads and do any manual work. He does not have enough education to allow him to get another job. Michael he has been separated from his partner for some 10 years and he has five children ranging from 17 to 4 years of age whom he looks after. His partner looks after only one of the children. Michael exists on a Centrelink pension of $670 per fortnight and he receives maintenance from his former partner of $261.63 per year.
    
37. Michael lives in rented accommodation and has no assets of any substance. He would dearly like to pay off his debts, which unfortunately are not specified in his evidence and would like to buy a small bus or people mover to transport his family. How he manages on that income is hard to imagine.
    

Lisa Suzanne Ryan

38. Lisa is 45 years old and lives in Devonport in Tasmania. She lives in a caravan park because she has to wait for another 5 years to get any Housing Commission accommodation. She has been a seasonal worker for the last 20 years and the reason she lives in Tasmania is to follow that work. Lisa's health is not good. She has suffered from depression for over 21 years and has problems with a physical condition as a result of working in fruit picking. Her assets consist of a car worth $7,500 and a television set. Lisa has debts of about $4,100. Her work, supplemented by Centrelink, normally provides $400 per week, which is entirely consumed in expenses. Lisa would like to buy a caravan so she could have some security in her accommodation. Lisa gave evidence of an abusive relationship with her father and not much contact. She also gave evidence that this was because when she was a young teenager, her father had raped her. There is no other corroborating evidence other than her say so on this aspect. However, none of the submissions made by the plaintiff suggest that there is any disentitling conduct on her part.
    
39. I also mention that she has suffered from alcoholism and has battled it all her life.
    

Carolyn Jennifer Noble

40. Carolyn is 27 years old and a single mother. She has three children who range from 3 to 10 years of age. She receives a Centrelink single parent benefit of $1,195 a fortnight and receives no child support from her ex partner. Carolyn's income is hardly sufficient to cover food for her and her children. She has a house valued at $250,000, a car worth $13,000 and some household goods. She has a mortgage of $213,000 and she owes some $9,000 to her aunts, who help her out when she misses mortgage payments.
    

Mitchell Lawrence Anderson

41. Mitchell is 23 years old, he is single and without any dependents. He lives with his sister and mother in rented accommodation in Maclean. Mitchell works at Bi-Lo earning between $491 and $699 per week. His expenses unfortunately are high because he paid $16,500 for a car, which he is still paying off. His other asset is a personal computer. He is anxious to pay off his debts.
    

Stacey Louise Anderson

42. Stacey is 22 years old and has a one year old daughter. Stacey lives with her mother and her brother, Mitchell. Stacey receives a Centrelink Single Parenting Payment of $579 a fortnight and a $371 Family Tax Benefits per fortnight. This is consumed in her expenses and she has a $10,000 personal loan, which she is trying to repay. Stacey has a car worth $5,000 and a computer. She also would like to pay off her debts.
    

Discussion

43. In this matter it is necessary to see how the plaintiff's say they have been left without adequate and proper provision for their maintenance, education and advancement in life. Their application is that they receive the whole of the available estate. It is submitted on their behalf that this is necessary because of the need for medical treatment in respect of their ADHD.
    
44. The evidence suggests that the necessary additional funds would be based upon $80 per week for 40 weeks a year until they reached 18. The necessary sums without discount would be:
    

Travis

16,000

Caitlin

22,400

Russell

25,600

64,000

45. It is also of course to be noted that they are children who are truly dependent at this stage in their life. Normally, the deceased would provide for them whether by way of direct support or maintenance to their mother in priority to his other children.
    
46. There is a great temptation in this case to regard the plaintiffs' needs as paramount to those of their siblings because of their infancy and the great benefits that may be achieved by early intervention with the necessary funds to treat the plaintiffs' ADHD.
    
47. However, the task is more complex and any decision must consider the claim on the testator's family by the other children who have put on evidence. The situation of Michael, Lisa, Carolyn and Stacey are desperate and are compounded by their own responsibilities with regard to their children. Mitchell does not have these responsibilities, but he has put himself in a tight situation.
    
48. I am satisfied that the plaintiffs have been left without adequate and proper provision. I propose to increase their provision. This is best done by giving legacies to the five children who have given evidence and by leaving the balance of the funds to the plaintiffs in proportion to their needs. The defendant, who can make appropriate provision for the plaintiffs, can hold the funds for the plaintiffs.
    
49. The orders that I make are as follows.
    

1. In lieu of the provisions arising from the intestacy of the deceased I order that:

(a) Lisa Suzanne Ryan, Carolyn Jennifer Noble, Stacey Louise Anderson and Michael Colin Ryan each receive a legacy of $7,500.

(b) Mitchell Lawrence Anderson receive a legacy of $5,000 and

(c) That the residue of the estate is to be held by the defendant for:

(i) Travis Alexander Ryan as to 25%
(ii) Caitlin May Ryan as to 35%
(iii) Russell Lee Ryan as to 40%.

2. The plaintiffs' costs on the ordinary basis and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased.

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